TMI Blog2018 (2) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... ice provider to mark its products (ICICI Bank) - the appellants are in fact engaged in promotion and marketing activity of the financial products of the client bank. Time limitation - penalty - Held that: - due to non-payment of tax and non-filing of returns, the Original Authority held against the appellant both on limitation and penalties - time limitation not invocable. Appeal allowed in part. - Service Tax Appeal No. 81 of 2012 - Final Order No. 50801/2018 - Dated:- 22-2-2018 - Hon ble Shri S.K. Mohanty, Member (Judicial) And Hon ble Shri B. Ravichandran, Member (Technical) S/Shri N. Venkataraman, Senior Advocate, Satish Kumar, Advocate and Parvesh Khandelwal, Consultant for the appellant S/Shri Amresh Jain and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the various financial products of the bank. Such services are specifically covered for taxability under the category of Business Support Services in terms of Section 65 (104) (c) of the Finance Act, 1994 introduced only w.e.f. 01/05/2006. Prior to that date, there can be no tax liability under the general category of marketing under BAS. He submitted that the sales team of the appellant is to act as per the specific directions of the bank and the restriction so stipulated in terms of the agreement make it clear that the appellants do not enjoy any freedom or flexibility in carrying out the activities of marketing assistance to the client. Drawing our attention to various clauses of the agreement, the learned Counsel submitted that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for setting aside the penalties imposed on the appellant also. 5. The learned AR strongly contested the appeal both on merit as well as on limitation. On merit, he submitted that the various terms of the agreement and the essence of the agreement will reveal that the appellants are engaged in marketing the financial products of the client bank. Specifically drawing our attention to the scope of the agreement as given in the preamble and clause 2.1, 8.1, 9.3 and 10.1 of the said agreement, the learned AR submitted that the terms of the agreement admit no doubt regarding the overall scope of the work by the appellant and this is essentially a marketing activity of the financial products of the client bank. The appellant is not providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies (supra) is not sustainable as relevant facts of that case has not been taken. Reliance was placed on the earlier decision without distinguishing the facts of the said appeal. 7. We have heard both the sides and perused the appeal record. Examining the merits of the case, we note that the appellants were engaged as a service provider to market the products of ICICI Bank. This is very clear from the scope of the agreement as given in the preamble as well as Clause 2.1 of the said agreement. We have closely read the terms of the agreement. It is apparent and clear that the said agreement is to market the financial products of the client bank. Regarding the monitoring and strict regulation exercised by the ICICI Bank, we note that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants are in fact engaged in marketing and not simple operational assistance for marketing. As such, in view of these detailed analysis, we are convinced that the appellants have no case on merits. 9. The appellants strongly submitted regarding limitation and penalty. We note that there were some element of overlapping statutory scope of tax liability both under business auxiliary service and business support service. In fact large number of litigations are only with reference to distinction between business auxiliary service and business support service. All these disputes were after the introduction of BSS after 01/05/2006. 10. Though, we find substantial force in the submission by the Revenue regarding the correctness or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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